Without a trace: How a misfired Florida law makes crimes disappear
Guest column by Brittany Suzsan, Vice President, SpotCrime
Florida’s Chapter 119, the Public Records Act, is seen as one of the strongest transparency laws in the country when it comes to accessing public crime information.
Chapter 119 has allowed websites and media outlets, like SpotCrime, to collect public crime data, geolocate it, and disseminate it as quickly as possible over a multitude of platforms.
The type of information most media outlets collect from police agencies under Chapter 119 is known across the nation as a “crime blotter,” “event log,” and/or “call log.” Crime blotters have been around and distributed to the public since the first crime maps were recorded being made in the 19th century, even without an open records request. Most police agencies pull something from their Records Management System (RMS) and/or Computer Aided Dispatch system (CAD or 911 calls for service) daily for crime analysis purposes — like where to place more foot patrols within a precinct or for hot spot policing.
Included in the blotter is a list of crime incidents officers responded to throughout the day within the jurisdiction of the police department, the address location of the event, and the date and the time the event happened. Typically, it is a preliminary list with no victim or suspect information and does not include the full report or full description of what happened. If a media outlet wants to learn more on an incident, they can use Chapter 119 to request further details.
Since 2014 and the roll-out of the White House 21st Century Policing Initiative, hundreds of police agencies have begun embracing open crime data, publishing these crime blotters and calls for service logs directly to their websites in machine readable format via an API or download button for anyone to access, use, and re-share without restrictions.
Sharing this kind of crime data with the public alerts residents of crimes on their streets, empowering them to protect themselves and their families. In addition, demonstrating crime data transparency creates a police-community feedback loop that increases accountability and allows the police and community to work together to prevent crimes from happening, to lower the crime rate, and to solve crimes.
Enter Marsy’s Law
An amendment to the Florida constitution declaration of rights — Article 1, Section 16 (“Rights of accused and of victims”), also known as Marsy’s Law for Florida — took effect this past year.
Marsy’s Law for Florida grants rights for victims of crimes in Florida including the right to receive notifications of all legal proceedings involving the accused, the right to privacy, the right to be heard, and the right to be protected from harassment.
Changing transparency
Unfortunately, although well intended, the ambiguous language has wreaked havoc on police agencies across the state when it comes to allowing the public to learn about where a crime occurs. To further the frustration, there has been no state-wide standardization, no guidelines for rollout or enforcement, and no litigation challenging the current law for clarification.
One of the most ambiguous pieces of Marsy’s Law is section 16.b.5: “The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim.”
This specific language, and the legal interpretations behind it, are spearheading the fight over access to public crime information. The consequences to this are grim, slowly destroying openness across Florida law enforcement agencies, reversing decades of work towards police transparency.
Removing crime information from public access
Some agencies, like the Polk County Sheriff’s Office and Pasco County Sheriff’s Office, have begun withholding all public crime blotter and calls for service information from the public’s view. These agencies are the most concerning.
Both Sheriff’s Offices are citing the same language from Marsy’s law, Section 16.b.5, claiming releasing blotter or calls for service information violates Marsy’s Law because knowing where a crime occurs is information that could be used to harass a victim of a crime.
Polk County had been providing a daily .csv data file to SpotCrime and the Lakeland Ledger for around 10 years before Marsy’s Law took effect. The file included a list of public crimes that occurred throughout the day, the address location the crimes occurred and other important details like date, time, and case numbers.
The Sheriff’s Office even acknowledged that their interpretation of Marsy’s Law as an overreach, telling SpotCrime in an email:
‘‘We are officially agnostic. We do not believe that the previous system was harmful to victims, but the law is what it is & we need to follow it. We think it was an over-reach. It is possible the courts will modify it or the Florida legislature will clarify the amendment through legislation. Until that happens, we have to follow the language of the amendment.”
Thinking Polk County was a one-off, SpotCrime reached out to the Pasco County Sheriff’s office when their calls-for-service log published to their website for around 10 years was turned off, asking them to turn it back on, naively thinking it was a computer glitch or software update that took the feed offline. However, Pasco County Sheriff’s cited Marsy’s Law for the removal of the public feed, claiming calls-for-service data they had been providing for ten years already could potentially be used to harass or locate a victim.
(You can view all of our Pasco County and Polk County correspondence at a Google drive folder here).
Creating more victims
If victims have the right to not be harassed or located, shouldn’t the public have the right to prevent themselves from becoming a victim in the first place?
The Marsy’s Law supporters themselves think the answer to that question is “yes.”
They released a statement in May 2019 stating that “there are no provisions in Marsy’s Law for Florida that prevent the release of details of a case, including general information on where crimes have taken place.”
Paul Hawkes, a former judge with Florida’s First District Court of Appeals, and counsel for Marsy’s Law for Florida, has stated that “withholding details of a case and delaying release of information about a crime is not the intention of Marsy’s Law for Florida. This is an overly extreme interpretation of the law.”
Other agencies, like the Tallahassee Police Department and Jacksonville Police Department, also removed their feeds from public access, but after public outcry and the messaging from the Marsy’s Law organization, both police agencies started publishing crime data again.
However, both Polk County and Pasco County continue to make it seem that their hands are tied. Polk County even acknowledged: “Our legal counsel’s office was aware of that interpretation [the Marsy’s Law press release] at the time they gave us direction about Marsy’s Law. We respectfully decline your public records request based on Article 1, Section 16 of the Florida Constitution.”
Pasco’s legal counsel didn’t think the Marsy’s Law press release was good enough, calling the statement “an opinion published by a lobbying group” and that it “does not state that block-level address information should be released.”
Stonewalling solutions to transparency
To restore access to crime data for the public and press, SpotCrime offered to pay for programming to anonymize addresses to the block level.
This did not work. Both the Pasco and Polk agencies declined the offer with similar reasons for their initial denial — claiming now that redaction to the block level is “creating a new record,” and that the Public Records Act does not require agencies to create a new record. The responses SpotCrime received from both agencies can be found below:
From Polk County:
We believe that to provide numerical or partial numerical, or street information would disclose ‘information or records that could be used to locate or harass the victim or the victim’s family.’ We would need to manually delete those data columns or we would manually go in and delete each of those fields.
To reiterate, a public records request only applies to existing documents — those non-exempt and non-confidential documents and records that are in existence at the time of a request. We are not required to create a record in response to a request. We are not required to reformat electronic records and provide them in a particular form demanded by a requestor. Further, we are not required to respond to any ‘standing request’ of a requestor, meaning a request for future records that are likely to exist.
From Pasco County’s legal counsel:
If the way our system lists a location is by a specific address, and the address would need to be redacted from the record in order to not release the location of a victim, then the report still needs to be generated to comply with the public records request, and the address needs to be redacted. We do not have to change information in a report or CAD to list a general block-level address if that is not how it is listed in the system, just to appease a requestor of public records. They are only entitled to information in our current possession, with any legally required redactions, and we do not have to (nor will we) create a different record solely to respond to a request.
It is safe to assume that both of the agencies know informing their public of crime is important in keeping everyone safe. Sheriff Grady Judd is occasionally publishing posts on Facebook about a few crimes only he decides are important. Pasco County will release information on crimes only if a request is made under Chapter 119, and then will not release any location information related to the request.
Both agencies are still refusing to take the right steps to make the data available again because they can hide behind the ambiguous wording of a law. This is not transparency.
Learning from North Dakota
A blanket withholding of crime blotter information because it “might” violate Marsy’s Law is not the correct step forward, and North Dakota agrees.
North Dakota ran into a similar issue with their own version of Marsy’s Law, as their law also had similar provisions when it came to location information that could be used to identify a victim.
In 2017, the North Dakota Attorney General issued an opinion interpreting Marsy’s Law and determined that a victim must opt-in on any right to prevent disclosure, declaring “a victim must affirmatively assert his or her rights outlined in Marsy’s Law.” In other words, the default assumption is that — even after Marsy’s Law — information about the location and nature of crimes remains the public’s business.
The A.G.’s ruling also limited the type of location information that can be withheld at the victim’s request primarily to pinpoint address numbers and building names, and even went as far as declaring that names aren’t secret.
The result is that, in North Dakota, Marsy’s Law no longer hides the facts of a crime.
North Dakota police agencies continue to have the ability to publish crime blotters that include when and where a crime occurred. Then, if there are any further requests for information about a crime or the victim’s case, the city or county prosecuting attorney’s office determines whether the victim opted into nondisclosure under Marsy’s Law, and if so, whether further information can be released.
A simple Google search for any major cities in North Dakota and the words “calls for service” or “crime blotter” will return meaningful results. This ruling can translate to Florida.
What does 2020 hold?
It is clear that public access to crime information has an impactful effect on transparency, public safety, community relationships, and police accountability. This kind of information is imperative to protecting against and preventing crime.
Unfortunately, until some sort of legal ruling is in place, the 2020 outlook for police transparency in Florida is grim.
The responses from agencies like Polk County and Pasco County beg the questions — why are these agencies going through great lengths to not inform their public about crime in their neighborhoods? Are they hiding behind Marsy’s Law in order to not be held accountable for rising crime statistics? Are they policing effectively? Are they using Marsy’s Law to control the image their public has of them? Are they afraid of transparency? Or are they really afraid of being sued for violating a victim’s rights?
Here at SpotCrime, we have more than 12 years’ experience to know that every single one of the 18,000-plus police agencies in the country have different personalities, different politics, different ways of approaching problems. It’s why we advocate for open, equal, fair, and consistent access to crime information. Relying on a few statements from legal teams, hoping police agencies choose transparency, and waiting for everyone to follow suit is not a solution.
Ask yourself and ask your police agencies — would you want your neighbors to know of a burglary at your home if it meant protecting families from becoming the victim of the same preventable crime?
If the answer is “yes,” then please ask your lawmakers to provide clarifying language. Take a look at the solution in North Dakota. Reinstate the strength of Chapter 119 by allowing police agencies to be transparent about the facts of crimes.
SpotCrime is a service of Baltimore-based ReportSee, Inc., offering a public-facing crime map and crime alert service.
